LEGAL PROFESSIONAL ETHICS

"Concerns itself with rules of conduct regulating the profession

" Provides norms ITO-judged to be fit and proper persons to practise
" Regulates attorneys conduct in his professional career, personal life.

MAIN SOURCES OF CODE OF CONDUCT

the Legal Practice Act No 28 of 2014 as amended

and juristic
Code of conduct for legal practitioners, candidate legal practitioners,
entities
The repealed Attorneys Act No 53 of 1979, as amended
Foreign influences
Rulings of Councils
Court Decisions
Common Law, SA textbooks
Foreign Influences

LEWIS GOLDEN RULE:

damage his reputation as

A Practioner must avoid all conduct, which if known could
an honourable Lawyer and honourable citizen.

The purpose of ethical training:

standards applicable to the
Todevelop an understanding of the foundations of ethical
legal profession
professionals to develop
Todevelop moral reasoning skills aimed at empowering
scrutiny.
moral autonomy and decisionmaking skills that withstand
and consequences of
To develop ethical awareness and consciousness of the impact
one's actions, both personally and professionally.

What is a profession?

profession is a career which complies with the following requirements:

A
Intellectual basis
An advisory function
A tradition of service to client
Has a representative body
Has a code of conduct
 Seven universal ethical
principles for any profession
Honesty
Trustworthiness
Loyalty
Respect for others
Adherence to the law
Avoiding harm to others
Accountability

Vassen vLaw Society of the Cape: 1998 (4) 532 (SCA)

The court held that legal practitioners occupy a unique position. On the one hand they serve
the interests of their clients, which requires a case to be presented fearlessly and
vigorously.
On the other hand, as officers of the court they serve the interests
of justice. Absolute
personal integrity and scrupulous honesty are demanded of each of them and secondly a
practitioner who lacks these qualities cannot be expected to play his
part.

Prince v President cape law society and others 2002(2)

Prince was convicted for having two previous
convictions for possession of cannabis and
declared his intention of continuing to break the law due to
his religious beliefs. The court
held that he was not a fit and proper person to be
admittedas an attorney. During 2017 Prince
was successful in the Western Cape High Court in
having certain provisions of the Drugs and
Drug trafficking Act 140 0f 1992 declared
inconsistent with the Constitution of Republic of
South Africa Act 108 0f 1996 and invalid to the
extent that they prohibit the use of cannabis
by an adult in private dwellings where the possession,
purchase or cultivation of cannabis for
personal consumption by an adult.
(
The judgment was appealed to the Constitutional
Court. On 18 September 2018, the Court
held declared the act to be invalid to the
extent that it renders the use or possession
cannabis by an adult in private for personal consumption a of
criminaloffence. The effect of the
judgement would enable Prince to approach the court to be
admitted as a legal practitioner.

Read the following cases:

1 Vassen v Law Society
2 Jasat v Natal Law Society
3 Malan and Another v Law Society, Northern
4 Lawsociety of the Cape of Good Hope v
Province 2009
5 Law Society of the Cape of Good Hope
Berrange 2005
and Another v Holmes
6. Hepple andothers v Law Society of the Northern Provinces
financial records revealed a number of
Here investigation into accounting and
Attorneys Act. These included trust
irregularities amounting to contraventions of the
for interest generated
deficits, missapropriation of trust money, failure tO account
reconciliation and manipulation of
from trust accounts, failure to keep copies of bank
bank recon to conceal trust deficits.

an application to
In Swartzberg v Law Society, Northern Province 2008 the applicant made
some 8
the High Court for his re admission as an attorney after being struck off the roll for
held that when
years forfailing to keep proper records, theft of trust moneys and fraud. It was
balance of
a person applies for readmission the onus was on him to convince the court on a
probabilities that:
There had been agenuine, complete and permanent reformation on his part. The
court took into account the following factors in determining whether or not the
applicant discharged the onus included;
The nature and degree of the conduct which occasioned his removal
Explanation of if any afforded by the applicant for such conduct
The way in which he conducted himself in an enquiry into his conduct and subsequent
proceedingsfor his removal and application for his readmission
His activities subsequent to removal
Expression of contrition and genuineness
Efforts to repair the harm his conduct might have occasioned to others.

Duties of a Legal Practitioner

1 DUTY TOUPHOLD THE LAW:

because aLP is associated with administration of justice he is under a Positive duty to

maintain Law. Being convicted of a criminal offence other than trivial offence usually
amounts tounprofessional conduct even if no dishonesty is involved because it shows
disrespect for the law.

no corruption, bribery or defeating the ends of

Justice. (JASAT v NATAL LAW SOCIETY)
Seminal case where attorneys are suspended/ struck of the role.
Convicted of a criminal charge. He advanced a fake alibi. suborned witness to give
evidence in support of alibi, giving false evidence - not fit and
proper.
 2. DISHONESTY NOT REQUIRED:
evidence he
without positive dishonesty eg the
tnere may be unprofessional conduct client which the
and extent of obligations to
does not understand the nature
profession imposes can be guilty of U/P conduct.

3. DO NoT ASSIST A
CLIENT TO BREAK THE LAW:
not assist a client to the break
A LP duty to uphold the law also reguires that he or she must
the law.
Alert the client to consequence of such action and dissuade him. Can advise on taking
advantage of a loophole in the law, his responsibility tothe client cannot override duty
to uphold the law.
If client persists - refuse to act.

4. PERSONAL LIFE:

If you dosomething that brings you into disrepute, then the profession willbe brought
to disrepute, and administration of justice. Even though personal misconduct mnay
have less weight, then professional misconduct may still be grounds for striking off.
"Not fit and proper person"
Absolute obedience to law stands as an ideal. Disciplinary action
of its commission.
-gravity or frequency

Case study scenario:

You are consulted by client who is
charged with rape and murder of a 6 year old
admits to it. He informs you he does not child. He
him. Would you represent him?
intend pleading guilty and wants you to represent

An attorney is permitted to
act in a matter where
death/rape of a victim. client indicates he is
responsible for
It is not for the attorney
to determine the guilt or
He does not mislead the innocence of client. He must
court in making any ensure
He does not mislead submissions
witnesses by making untrue
By putting up
affirmative defence which is not submissions
He can attack the true
of the court or credibility of witnesses or raise
correctness of charge. technical defences like jurisdiction
THE ATTORNEY AND HIS PRACTICE
All practising
attorneys and trust account
advocates must have Fidelity
Fund certificates.
 >e potnrs romple

Attorneys bookkeeping
account s for atterntyr bo leeep accoN
Trust Account /funds t Tust acccunt and eusress
Investment - S86(3) +S86(4)
Insurance the LPlIF and LPFF
dhics
B a o r d e x m g
Risk Management
Cybercrime
t oe n p l r t h e m .

Trust money

s(tra
Professional conduct rules apply in the following areas:
Relationship with client
Relationship with other practitioners
Relationship with courts
Relationship with community
v g t u qc l i e t
Relationship with state
Relationship with LPC
ckenle1tcllan
TREATMENT OF CLIENTS

The client is the most important person in any undertaking

ettt stul
toa
The client is not dependant on you, youare dependant on him
The client does not interrupt your work he is the object thereof
-7Choceues Theclient does youa favour when he comes to see you -you are not rendering him a
favour byserving him
The client is part and parcelof your business; he is no outsider
Heis not a statistic he is flesh and blood with emotions and feelings
He is not someone you should fight or cross swords with
He brings his needs to you it is your priviledge to look after his needs
He deserves the highest degree of courteous and attentive assistance he is the
lifeblood of your firm.

Accepting the clients - Considerations -

Satisfy yourself of Following:

Clients identity /Fica- it aims to combat organised crime and deter money laundering
Clients Competence
Power of Attorney
Clients knowledge of scope of instructions

Consider the following:

Potential conflict of interest

dt an asset whn ne ows youloes

 Potential fraud, legality or
Competence other impropriety
Ethical duty to advise
clients on mediation
The letter of
engagement should contain the
Identity of client-with following:
Any additional parties required FICA process
Primary responsible attorney
Details of mandate/scope of / assistants
Time Frames work
What documents are
required
Deposits
Investing clients' money
Fee Structure
Termination of mandate
Instruction to sign and return
Client to agree to domiciluim
citandi et executandi

CONFIDENTIALITY
Implied term of contract
between you and the client to
all communications
between you and the client. preserve the confidentiality of
This is absolute and
must be
disclosure may be rendered preserved by the attorney except to the extent that
permissible.
Confidentiality can only be waived by the
client.
LEGAL PROFESSIONAL PRIVILEGE

Is protection from evidential use of

Information is only protected certain confidential information.
by privilege
DOES NOT APPLY TO:

Documents not otherwise privileged

Communications made for the purpose of
Name of youclient facilitating crime /fraud
Facts learned by you
with
implication provides it is your own senses and where statute expressly or by
Where confidentiality inapplicable.
of oral evidence
confidentiality of contemporaneous is destroyed by
such evidence, the
records is likewise
destroyed.
WITHOUT PREJUDICE
Statements "wop" means right of a
against them. party to make
statements which cannot be proved
 To encourage parties to a dispute to avoid litigation and all expenses delay, hostility
by resolving their difference amicably in full and frank discussions.

CONFLICT OF INTEREST

Is one which would be likely to affect adversely the judgement of the lawyer on behalf
of his loyalty

Examples: Acting for both plaintiff and defendant/ employer and employee
AFFIDAVITS

Acommissioner shallnot administer on oath/ affirmation which he has on interest

LIEN
An attorneys right of retention arise in following circumstance:
Adissatisfied client changes his attorney
Aclient comes to you in relation to matter completed by former attorney.
Client wants to sue a former Attorney.

CONTINQUENCY FEE AGREEMENT

Must be in writing and form prescribed by CFA

Entitled to charge up to twice the amount of usual fee but no exceeding 25% of
amount of ward.
-D mu5t

AGREED FEES

In assessing a practioners bill of cost the taxing committee will be guide by:
Amount and complexity of work
Importance of the matter ordifficulty or novelty of work.
Skill,labour and specialised knowledge and responsibility involved.
Number and importance of documents prepared or perused
Place where and circumstances in which service rendered
Time expended by practitioner.
Amount of value where money or property is involved
Importance of matter to client
Quality of work done
Experience/ Seniority of practitioner

TERMINATION OF MANDATE

Improper conduct of client

Clients deliberate fraud
Attorney personality clashes with client your odvite
 Client does not accept Attorneys advise/ failure to provide funds.

CONTEMPT OF COURT

Insulting or threatening judge/ magistrate

Insulting or showing disrespect to a judge. Magistrate.
Wilfully interrupting or disturbing court proceeding
Defying a magistrate/ judge ruling/ direction
Failure to appear in court
Destroying documents
Breach of court orders.
Scandalising
Subjudice

INSURANCES
1. LPIIF- covers loss through negligence by LP or member of practice (clause 5 of LPIIF)
2. LPFF- covers loss through misappropriation of trust money/property by LP
/employee. Fund of last resort.

REASONS FOR INCREASE IN CLAIMS REPORTED TO LPIIF

GROWTH IN PROFESSION
FAILURE TOADHERE TO PROFESSIONAL STANDARDs OF PRACTICE
FAILURE TO IMPLEMENT RISK AVOIDANCE PROCEDURE
FAILURE TO IMPLEMENT RELIABLE DIARY SYSTEM
FAILURE TO ADEQUATELY SUPERVISE STAFF
EMERGENCE OF BRIDGING FINANCE PHENOMENON AND FALLING VICTIM TO
( CYBERCRIME.

S STEPS TO TAKE WHEN A CLAIM PRESCRIBES

Boord
Advise client in writing that claim has prescribed
Attorney not to admit negligence as this may vitiate claims against the fund
Advise client to consult with another attorney.
To protect himself inform LPiIF immediately of potential claim
Ifsummons have been issued inform the fund and hand over summons.

STEPS TO TAKE WHEN THERE IS A CLAIM AGAINST FIDELITY FUND

The claimant must give written notice to the fund and LPC within 3 months after
 becoming aware of the theft
Within 6 months after receiving a writtendemand from the fund, provide the latter
with proof as may be required.
Before instituting action against the fund the claimant must exhaust all legal remedies
against the defaulting party (excussion), unless the fund directs otherwise
The fund may require the claimant to depose to an affidavit setting out basis of claim
and supporting documents

CYBERCRIME

Excluded from LPIIF policy ito clause 16(0). the firm will have to bear risks themselves.
Cover is available on open market.
Cybercrime is any criminal or other offence facilitated by or involves the use of
electronic communication or information systems including any device or the internet
or any one of them.

Avoiding cybercrime
Ensure adequate risk mitigation /avoidance measures in place to deal with risk
Make staff aware of the various scams
Place appropriate commercial insurance cover to deal with risk associated with this
Proper supervision of staff and system of checks and balances where banking details
change and can only be authorised by senior practitioner after verification process
Be aware of phishing emails ;do not click onto links to unsecure emails.. do not enter
your password on any unverified email attachment
Ensure proper FlICA verification processes are in place and that identity and bank
details of all clients properly verified.
Contact clients using telephone details on record in order to verify any purported
( change in banking details
Insist that changes to payee details can only be done after verification with the party
to whom funds are due and in person at the attorneys office with original documents
present
Obtain advise from |T experts on the appropriate security measures to be
implemented in order to avoid cybercrime
Keep up to date with constantly changing risk environment in the general commercial
world
Add notification close to email signatures stating that banking details have not
changed and that anychange be communicated via email.

STEPS TO MITIGATE RISKS EMANATING FROM MISAPPROPRIATIONTRUST FUNDS

Designing and implementing internal controls and accounting record retention
 systemsas prescribed by rules 54 and 55
Shortfall in trust must be reported immediately to L
broker/insurer must be intormed
IT the firm has misappropriation cover. the
immediately
mpiementing appropriate segregation of
duties so no one person can request,
requisition,authorise and releasefunds
Proper system of supervision
Regular audit and review of finance function
Regularly checking trust balances against trust creditors
Implementing peer review system
Ensuring staff in finance department take regular leave
Having more than one authoriser for payments/rotating authorised signatories.

MITIGATION OF RISKS ASSOCIATED WITH PRESCRIPTION

Not accepting new instructions close to prescription

Ensuring instructions are taken at an early stage to institute action timeously
Registering alltime barred matters with LPIIF prescription alert
Instituting regular file audits and review of files
Having a proper system of supervision staff
Implementing a peer review system
documenting such instructions
Closing problem files where necessary and properly
Implementing dualdiary system between practitioner
and support staff
clients in case further instructions are
Obtaining more than one contact detail from
instituted
required before legal action is
Not procrastinating iro implementing
of instructions
prescription periods, risks associated
Providing regular training for all staff on
therewith and risk mitigation measures.

Ba
 legal eehcs
TAkiny
Tnstuctors

PROFESSIONAL LEGAL ETHICS

Questions

John Doe has been a longstanding client of XYZ Attorneys. One of the partners decides to
task B,a recently admitted attorney at the firm to attend to the following matters for
client. Consider if the following amounts to improper conduct and give reasons.

i. Collection of outstanding debts. The fees in this regard are ito contingency fee
agreement whereby the firm would be entitled to 75% commission on each
amount collected on behalf of its client.
ii. To launch anurgent application iro virtual currency. Bhas no knowledge in this
field and briefs an advocate to assist with the matter. B did so without
clia-k t nn da
receiving clients instructions. T^pOrel
bec 2st hae éo adte
ii., The founding affidavit needed to be commissioned. In order to save time
looking for a commissioner, Basks a fellow colleague employed to commission
the document. The application was dismissed. Bforgot to inform client.
iv. Bis writingup fees at the end of month and sends client a statement of
Bocauze
yar account of R1 200 000 for an urgent application. The total time spent on the
ourcheg the application was6 hours. Which included court preparation and appearance.
V Just before the start of a criminal trial before the magistrate you notice the
complainant is the magistrates son. Discuss the appropriate steps you would
bors o eq
followed. fRrh magist ule tn chon
take to ensure ethical rules are hecel
vi. During the course of your civil trialthe attorney becomes aware that there are
recent SCA Judgments which are adverse to your clients arguments. What
obligation does the attorney have towards the court as well as towards his
opponents in this regard?
but he oesdt need o teil otoret
vii. Due to the excitement of the large statement of account, Bwent out
celebrating insteadof dealing with the matter and allowed the claim to
prescribe. Bwrote client a letter confirming the matter had prescribed as a
adot neylgeree
result of his negligence. No uposed Eo
viii. Can Bshare fees with counsel? NO, Vou pau them Aistvsem
ix. Client is not happy with the statement of account and informs you that he will
be taking it to the LPC. What criteria willthe LPCapply when reviewing the
statement of account. Gt Con notes
X. Isit proper for the law firm to borrow money from the client? No,onp
Client is h bososs er lerdaa m
 xi.
One of the partners at the Law firm misappropriates RS0 million from the trust
account and flees to the Bahamas. What are the repercussions for the
remaining partners? >olt t Soueal rohlty
xii.
List 4situations when the attorney is obliged to refuse a mandate. NotS
dash xiii, You receive an offer from a corporate entity to join as a legaladvisor which

Cebtor S
you accept. What steps are you required to take in order to cose your practice?
trab u(otoo xiv. Your colleague with whom you had attended a 5 year law school reunion
informs you that he was convicted for driving under the influence of alcohol
while driving home after the reunion. He informs you that there is a pending
application at the High Court by the LPC to have his name struck of the roll.
What is the High Court likelv to do and whv? S4 on the wst bec ne
XV.
During the course of the law firms audit itappears that the former bookkeeper o hin
has stolen a large sum of monies belonging to clients. explain how clients will
of (at (eor"
LPt, fud
gO about recovering their lossest
xvi. What criteria will the LPC apply when reviewing the statement of account in
order to determine whether it will be considered reasonable?
xvi. What is a fit and proper person? HIL
xvii. What is conflict of interest? Ndber
Explain overreachin
xix. and overcharging?
fee fec
dstrem

chorge
XOX. Can an attorney act pYo amico for a friend or relative? Yes, (o
oxi. What are party andparty costs? winqpuel hae to pau to Lpor Soas cerdo )
Xxii. What is attorney andown client fees?fee sclient uill pay aétorrte (o
Xxiii. What factors will a court take into consideration indetermining the amount of
maintenance to be paid by ex-husband who does not have actual dailycare of
the minor children? ocen tge of chlo, rore Los
ochld
MUst be eo xxiv. Explain the waysin which apartnership can be terminated?(ath, sdriy
What are the requirements for an interim interdict?
XXvi. (rpnce office(
What duties does FICA place on an accountable institution?
Xxv. What are the exceptions where an agreement may not be signed
electronically? e, (ty
et,
Xxvii. List the various risks faced bylawfirms? cube c trt, napicpun,
Xxix. What are the benefits of conducting a business in a corporate form rather than
nrd ictal y cntnukiby,cax
a sole prop or partnership.
XXX. Define conduct in terms of LPC code of conduct.